A recent case from a federal district court in Missouri highlights some of the issues that users of psychiatric service animals face in establishing their access rights. In the interest of full disclosure, I am on the advisory board of the Psychiatric Service Dog Society, though the opinions I express here have not been approved by the Society and are not an attempt to reflect the Society's positions on any subject.
The plaintiff, Debby Rose, sued Wal-Mart, an educational institution where she was taking classes (Cox Health Systems), and the county health department where she lived. The defendants moved for summary judgment of dismissal, which was granted. Ms. Rose claimed to have suffered from agoraphobia and anxiety disorder since the 1970s, although she was not diagnosed with agoraphobia until 2006. There was evidence that she had denied having any mental illness on a job application in the early 1990s, and in 1999 she told her treating physician she had no symptoms of anxiety or depression. Even when she was diagnosed, the physician stated that this was based largely on Ms. Rose’s descriptions of herself. She was married three times, held many different jobs and moved often. She worked as a dental assistant and managed the Greene County Humane Society. She also worked as a real estate broker. The court saw these facts as evidence of her ability to operate in the world.
In 2005, Ms. Rose founded Wild Things Exotic Animal Orphanage where she and her sons rescued primates and sought to place them with facilities. In 2004, she had acquired a Bonnet Macaque monkey that was nearly dead and required constant care. She began to take the monkey with her nearly everywhere and began to describe the animal as a service animal and said that it performed various tasks related to her disability, including “breaking the spell,” “breaking off the focus,” “crowd control,” “changing the mood,” and she claimed to notice a change in her heart rate and blood pressure when around the monkey. Her physician described the monkey as sitting with Ms. Rose and comforting her. The monkey performed certain tasks, such as holding her hand, touching her face, sitting on her lap, retrieving a toothbrush to encourage her to get out of bed, bringing her the TV remote control or her cell phone, putting on the turn signal in the car when she reaches the street to her house so that she knows it is time to turn, and opening the car door. The monkey was also described as giving strangers a gentle push to stay away from her.
Although Ms. Rose cited her physician’s testimony as supporting her argument that the animal is a service animal, the doctor actually testified that he had no experience with service animals, did not know the definition of a service animal, and could not state whether the animal would qualify as such under the Americans with Disabilities Act.
The Springfield-Greene County Health Department began to receive complaints regarding Ms. Rose bringing the monkey into restaurants and opened an investigation to determine if the animal qualified as a service animal. The Department contacted various state and federal agencies and concluded that the monkey did not qualify as a service animal and was a threat to public health. The Department sent letters to food services establishments in the area, saying that allowing Ms. Rose to bring in her monkey would be a violation of Missouri health codes. Wal-Mart received the letter and denied Ms. Rose access with the monkey. Cox Health Systems also received the letter and informed Ms. Rose that she could not attend classes at Cox College with the monkey, but could continue without it.
Cox Health Systems also reviewed reports of the Centers for Disease Control, noting that in the context of access to health care facilities, providing access “to exotic animals (e.g., reptiles and non-human primates) that are used as service animals is problematic.” (Guidelines for Environmental Infection Control in Health-Care Facilities (2003), at 110). For a discussion of the zoonotic diseases and their significance in allowing animals into healthcare facilities, see my chapter, Animals in Healthcare Facilities, in Service and Therapy Dogs in American Society: Science, Law and the Evolution of Canine Caregivers (2010).
The federal district court analyzed the situation in light of the Americans with Disabilities Act. The ADA requirements apply in Title II to public entities, which include the county health department, and Title III to places of public accommodation, which includes Wal-Mart and Cox Health Systems. The court first determined that Ms. Rose had not established that she was disabled under the ADA. Other than her “own broad and self-serving statements, the evidentiary record offers no support for Plaintiff’s claimed limitations.” The court found the facts of Ms. Rose’s history actually indicated that she functioned quite well in society. The medical testimony supporting Ms. Rose’s diagnosis of agoraphobia and anxiety disorder came from a physician who seemed to accept his patient’s self-diagnosis. The court concluded that the evidence did “not support a determination that Plaintiff’s disorders limit any of her major life activities, and accordingly, Plaintiff is not disabled under the ADA.”
The court also concluded that the monkey was not a service animal. The court cited the definition of service animal in 28 CFR 36.104. The court noted that the “vast majority” of the tasks performed by the monkey “involve nothing more than the monkey providing comfort.” The court argued that an animal “that simply provides comfort or reassurance is equivalent to a household pet, and does not qualify as a service animal under the ADA.” The court felt that Ms. Rose had failed to explain how the monkey’s tasks relate to her disability. Even where the tasks might relate to the disability, such as keeping people away with an open mouth or a gentle push, “Plaintiff provides no explanation as to the monkey’s training or the specific cues that would trigger the monkey to perform these ‘tasks.’” Although some service animal functions, say an alert of a seizure-alert dog to an oncoming seizure, may begin without formal training, handlers often reinforce this behavior with training. It is not clear whether the court would have accepted the function of the animal had there been more evidence of training procedures.
The court then made an observation about the monkey’s actions in keeping people away in agoraphobic settings: “Such actions are aggressive actions, particularly for a primate, and without evidence of specific training or cues indicating the monkey only performs these tasks in situations where Plaintiff's disorders may require it, these ‘tasks’ may feed into the health and safety concerns Defendants have raised regarding having a primate present in food service establishments.” This would appear to be a variation on the balancing of rights that enters into service animal questions at a number of points. Thus, a guide dog that is aggressive and out of control can be excluded from a public accommodation even if it is trained as a guide dog and works as such most of the time. More on point is the case of Storms v. Fred Meyer Stores, Inc., 120 P.3d 126 (Wash.App. 1 Div. 2005), where a dog put itself between the handler and others in public paces to keep an open space to help reduce the anxiety of a veteran suffering from post-traumatic stress disorder. The Washington appellate court found this function sufficient to label the dog a service dog and allow the matter to go to trial. With the dog, however, the risk of interspecies disease transmission is considerably less.
The court was also impressed with the fact that the defendants did not make knee-jerk decisions in denying access to Ms. Rose with her monkey, and accepted that the health and safety concerns of the defendants were valid.
The case demonstrates that establishing that an animal is a psychiatric service animal is not always easy. The physician’s testimony appeared to be tepid at best, and the court’s description seems to be that of a doctor uncertain of his own diagnosis and unfamiliar with what service animals can do. As a matter of trial strategy, Ms. Rose perhaps should have considered getting the expert opinion of a psychologist or psychiatrist. A diagnosis stating that she could not function in various public environments without the assistance of the monkey would have helped considerably. Since this was a motion for summary judgment, which was granted, it is possible that the defendants would themselves have insisted at trial on an analysis by an independent psychologist or psychiatrist.
People’s preferences in animals deserve some consideration. Take, for instance, the use of guide horses by individuals who prefer miniature horses to dogs. Nevertheless, primates pose a somewhat unique problem because of their evolutionary closeness to humans as a higher primate. That closeness comes with a much higher risk of disease transmission than applies to dogs (or cats or miniature horses). Because this factor was one that the court (properly) put into the balance, Ms. Rose might have succeeded had her psychiatric service animal been a dog.
Was the decision correct? On the facts, yes, in my opinion. Other facts should have changed the result. The Department of Justice proposed updates to its service animal rules in 2008 emphasized that service animals can do work or perform tasks for individuals with psychiatric, cognitive, or mental disabilities. DOJ also said that it has “always required that service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability, but has never imposed any type of formal training requirements or certification process.” Thus, Ms. Rose should have been able, had the matter gone to trial, that she had individually trained her monkey. DOJ noted that “a psychiatric service dog can help some individuals with dissociative identity disorder to remain grounded in time or place.”
DOJ’s proposals also distinguish emotional support from psychiatric service, and exclude the former while including the latter under the coverage of the ADA. It is not clear to me that the federal district court made this distinction, but given the facts this was probably not necessary. DOJ states: “The difference between an emotional support animal and a legitimate psychiatric service animal is the service that is provided (i.e., the actual work or task performed by the service animal).” In the case of Ms. Rose, the court clearly believed that she was trying to make a pet into a service animal, but it must be hoped that had the matter withstood the motion for dismissal, a trial would have considered that the monkey might have been providing psychiatric service beyond mere comfort. This would have required, however, that Ms. Rose establish a psychiatric condition, something she failed to do for purposes of the motion. It is also to be noted that DOJ’s regulatory proposal would exclude “nonhuman primates born in captivity” from the definition of service animal. Proposed 28 CFR 36.104. 73 Fed. Reg. 34508-34557. Consequently, if the regulations are finalized in the current form, Ms. Rose would not be helped by them, though someone with a similarly acting service dog could be.
Can a macaque be a psychiatric service animal? Yes. I believe that Ms. Rose failed to establish a psychiatric condition. Therefore, I believe that she failed to establish that the monkey was doing work or performing tasks for an individual with a disability covered by the ADA. I believe that she chose an animal with a greater threat of zoonotic disease transmission than would be the case with a dog or other non-primate providing similar benefits. It was because the animal was a primate that the county health department got involved. The letters of that department alerted the other entities about the disease transmission potential of the monkey. That probably would not have happened with a dog. Had she established a psychiatric condition, and established that the animal did work or performed tasks that alleviated that condition, I believe she should have been given the opportunity to establish that the macaque was adequately inoculated against relevant transmissible diseases and that it was sufficiently trained not to be a physical threat to people with whom it might come in contact. The disease issue does, however, present a higher hurdle for a primate than for other species with service animal functions.
Rose v. Springfield-Greene County Health Department, 668 F.Supp.2d 1206 (W.D. Mo. 2009). Ms. Rose has also had problems with keeping her orphanage on her farm, as described by an article posted on the website of a local radio station, KSPR.